McFarlane v. Golling

• Decision Date: 05 October 1896
• Docket Number: 306.
• Citation: 76 F. 23
• Parties: McFARLANE v. GOLLING et al.
• Court: U.S. Court of Appeals — Seventh Circuit

76 F. 23

McFARLANE v. GOLLING et al.

No. 306.

United States Court of Appeals, Seventh Circuit.

October 5, 1896

G.W Hazelton, for appellant.

A.A Jackson, for appellees.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

This suit was begun in the circuit court of Dodge county, Wis. It was brought for the purpose of having a deed of conveyance of real estate declared a mortgage, and ordered satisfied, and to recover rents collected by the mortgagee. The deed was executed December 22, 1891, by Frederick H. Golling, to the appellant Hugh McFarlane. The property is at Beaver Dam, Wis Golling died intestate October 3, 1893, at Chicago, where he had resided and been in business since 1887. The complainants are the brothers and sisters and only heirs at law of the deceased. They allege in their complaint that the deed was intended as a security for loans amounting to $2,026.36, and that Golling, before his death, had paid the debt in full. The answer admits that the deed was intended as a security but alleges that, besides the sum mentioned, it was given to secure other obligations of Golling to McFarlane to the amount of $3,000, unpaid. The court found that the deed was given to secure the first-named sum, and no more; that the debt had been paid by Golling except the sum of $53.30, which, deducted from rents received by McFarlane after Golling's death, left a balance due the complainants of $146.14, for which with costs of the suit the court gave judgment as prayed, and entered a decree declaring the mortgage satisfied, and ordering a conveyance of the land by McFarlane to the complainants.

The assignment of errors is objected to as 'uncertain, insufficient, and not a compliance with the rules of the court. ' It contains numerous specifications which need not be considered, because they are aimed at the opinion of the court, and not at the decree rendered. Caverly v. Deere, 13 C.C.A. 452, 66 F. 305, and 24 U.S.App. 617; Russell v. Kern, 16 C.C.A. 154, 69 F. 94, and 34 U.S.App. 90; Davis v. Packard, 6 Pet. 41, 48.

By the second clause of rule 24 of this court (11 C.C.A. ex., 47 F xi.) the specification of error in a case brought up by appeal is required to 'state as particularly as may be in what the decree is alleged to be erroneous. ' There is here no specification which designates any particular in which the decree is supposed to be wrong or defective. The nearest approximation to it is the twelfth specification, which says, 'The court erred in directing a decree for the complainants without considering and providing for the just and equitable claim of the defendant;' but that is hardly less general and indefinite than the next specification, which is that 'the court erred in disregarding the equities of the controversy. ' It should not be necessary to look to the appellant's brief to learn the meaning of his assignment of errors. Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 12 C.C.A. 350, 63 F. 891, and 24 U.S.App. 38. The requirement of rule 11 (11 C.C.A. cii., 47 F. vi.) that the assignment of errors shall be filed 'with the clerk of the court below, with the petition for the writ of error or appeal,' was designed to bring into the record at that time a separate and particular statement 'of each error asserted and intended to be urged,' and to a large extent the rule is a nullity if, under general and indefinite specifications like those quoted, the...